The Business Law Spot

Tuesday, November 29, 2011

Chapter 11 Airport

Well, it was just a matter of time. Every other major, U.S. airline had taken a trip through bankruptcy court in the last 10 years, and now American Airlines, via its parent AMR Corp., has gone in. AMR cites two, big causes: fuel costs and labor costs. Ignore the former; it's all about the latter. AMR will use 1113 to reject the current collective bargaining agreements, 1114 to severely curtail retirement benefits, and 29 USC 1341 to do a distress termination of the pension plans and foist them on the Pension Benefit Guaranty Corporation (i.e. we taxpayers). No word about a pre-pack plan, but you can bet there has been a bunch of negotiating going on. Watch the first-day motions to see who is pulling the levers. You can be sure it isn't the unions, who haven't even been invited to a side table.

It's easy to feel sorry for retirees losing pensions, but these tended to be real Rolls Royce models, while the rest of us muddle along with Yugos (Actually, mine is more of a skateboard.), so it isn't hard to see how companies can't keep funding them. There are two things that gripe me, though. First, it's apparently OK for a multinational corporation to walk away from obligations like these, but morally reprehensible for poor schlubs to bail on economically absurd mortgages. Sorry, that's hypocritical horse hockey. Second, AMR entered into these contracts with its eyes wide open and led by the managerial geniuses who will be running the reorganization and who are unlikely to take any kind of meaningful haircut for putting the airline in this position. If you want to talk about rewarding failure, start right there.

Sunday, November 27, 2011

Agribusiness Is The Problem, Not The Solution

Winterbotham Parham Teeple, one of SoCal's main BK houses, recently noted on its blog that rising grocery bills are playing havoc with family budgets. I commented that the real culprit is the decades-long romance of government and the banks with industrial agriculture at the expense of small farms. Winterbotham is trying to soft-pedal the price increases as business as usual. I'm having none of it, and you can call me a conspiracy nut-case all you want, but U.S. ag policy for over 60 years has had the uniform effect of continuously shrinking the percentage of the population that can feed itself. What does that mean? Control. As Mark Twain put it, "Show me where a man gets his corn pone, and I'll show you where he gets his opinions."

Anyway, I posted my comment a week ago, and it has yet to be let out of moderation, even though I know more about ag commodities and policies than everyone at Winterbotham combined (Not a brag. Fact.). So here it is:

"Yes, we would all like to maximize profits, but Agribusiness has had singular forms of assistance. Since WWII it has had a federal agricultural policy designed to drive people off the land, and since 1970 it has had a matching financial industry policy. We now have 90% of the population divorced from the land and wholly dependent on industrial food delivery (We have also become a net food importer, perhaps the greatest absurdity produced by our economic system.). When people tried to become less dependent, Agribusiness acquired new allies. A pliant USPTO granted patents on every strain of seed presented to it, allowing Agribusiness to send cease and desist letters to anyone with the temerity to save seeds for planting. And all producers have to comply with all regulations (regulations that Agribusiness loves to wail about but that it in fact uses to drive small “competitors” out of business), and if they don’t, the USDA, FDA, and state agricultural agencies will sweep in, destroy their operations, and even jail them, as if they were cooking meth.

In other words, Agribusiness has used government and bank assistance to create a captive market and continues to do so. So yes, there is plenty of reason to object to unrestricted price increases."

Wednesday, November 23, 2011

The Latest On Harrisburg

Bankruptcy Judge Mary France has dismissed Harrisburg's Chapter 9 petition, ruling the city did not have the authority to file under state law. See this post for my initial comments on the filing last month. Mayor Linda Thompson and a minority of the city council have fought the filing all along. I have not seen the ruling, but apparently it was based on two grounds: 1) Act 26 that the Pennsylvania legislature passed this year bars Harrisburg from filing, and 2) the authorizing resolution was invalid because it was not presented to the city solicitor first.

We'll see how this plays out. First, I question whether Act 26 is actually constitutional, regardless of Judge France's ruling that it is. Given that it targets Harrisburg alone among all the municipalities in Pennsylvania, it has to be vulnerable to an equal protection challenge. Second, if the council can get around Act 26 and wants to refile, it can streamroll the city solicitor. The law only requires that the resolution be presented to the city solicitor, not that he approve it. "Here's this resolution we're going to pass. Don't like it? Pound sand!" Believe me, I've been to that rodeo more than once.

If the decision stands, the mayor and the council minority are going to learn you should be careful what you wish for. Once a receiver takes over, their authority is going to be reduced to the name plaques on their doors. And maybe not even that.

Monday, November 21, 2011

No Giving Thanks In Orem

Nordstrom's has pulled the plug at the University Mall in Orem. Come 24 February, the mall will be missing two out of three anchor tenants (Mervyn's spun in several years ago, and Nordstrom's closure will leave only Macy's, in the old ZCMI space it got in the buy-out.) as Nordstrom's heads north to open its new store in City Creek. Orem will seriously be hating that loss of sales tax revenue, and Woodbury (the mall owner) has to be ruing the improvement money it fronted to get Nordstrom to move into that space 10 years ago. It's only half-way through the 20 years of earmarked sales taxes it was promised as reimbursement, and that payment stream just went POOF.

So why is Nordie's doing this? Because it knows where the money is. Nordstrom's has always been well above median in the market, it wants to go farther up the scale, and it doesn't think enough of the good citizens of Utah County have sufficient discretionary income to make it fly. In other words, Nordstrom's has called the yeast-growth-curve-knee in the MLM Ponzi scheme that is the Utah County economy. Utah County is saturated. There isn't enough upline/downline/sideline left for the next magic hoochie juice to cover family expenses and still leave some extra for Waterford crystal or clothes imported from anywhere other than China.

But we're so business friendly here and have such a well educated population. News flash: That's the problem. Because of what Utah is, gazillions of highly trained people flock here for jobs that don't exist. You can't swing a cat without hitting a dozen people with graduate degrees pounding the streets peddling security systems door to door because there isn't anything else to do. Add to that a rabidly pro-business legal and social environment, and you're not just in a race to the bottom of the wage barrel, you're picking up the barrel and digging a hole under it. You end up with no one being able to shop at Nordstrom's, except for the top 1%, and let's face it, there are only so many stores 25,000 people can keep open.

Of course the Chamber of Commerce is putting a big smiley-face on this, assuring everyone that Woodbury will have a new anchor in there in no time. I don't know what Kool-Aid they're drinking, and I'm not sure I want to know. What anchor retailers are looking for space like this? The Mervyn's space has been dark for three years now. Who is going to look at the demographics and decide that moving into this space is a good play? The Dollar Store?

Thursday, November 10, 2011

Another Muni BK

So we have another municipal bankruptcy filing, this one in Alabama. And it's a biggun, with over $5 billion in debt, sure to send some shockwaves through the bond markets (The centerpiece of this solid waste is a series of sewer bonds.). The one bright spot is that this isn't the result of anything systemic but rather of outright corruption, and that people have actually gone to prison for it (Gee, how did that ever happen?).

What I can't believe in all this is the remark by the receiver, John Young Jr., that the filing is an "utterly irresponsible act". Excuse me, but allowing the public purse to continue to be eaten away by creditors who were ratcheting up the terms of the settlement would have been utterly irresponsible. Your job, though, was to keep the creditors in line, and you failed, so if we're talking about "irresponsible"....

The remark I can believe is the one by the JPMorgoth Chase spokescritter, just not in the way she intended. I bet JPMC wanted to avoid a BK filing; in Chapter 9 its backroom maneuvering and political clout are severely curtailed (Duplicity by JPMC? I'm shocked, shocked! Just because I've had two VP-level JPMC counsel lie to my face in multi-million dollar cases....). Sorry, people, you overplayed your hand and left Jefferson County with no choice.

Friday, November 04, 2011

Ice Cream Cools Off

Dippin' Dots, which makes the ice cream equivalent of little chocolate doughnuts (You just keep popping them in until you 'splode.) has filed Chapter 11. According to its filing, it has a decent shot at reorganizing, but we'll see if the filing is reality. The bigger question is, if ice cream companies are going down (And they are. Goodbye Snelgroves!), just what sort of civilization are we creating here?

BTW, it's absurd that the spell checker here thinks "doughnut" is misspelled. But then again, it thinks "blog" is misspelled.

Thursday, November 03, 2011

The Way We Live Now

Do you think federal jobs are a safe bet? You might want to check with the 9,000 civilian employees the Air Force is showing the door.

Maybe high tech? Guess again. AMD, the second-largest microprocessor manufacturer, is shedding 1,400, 12% of its workforce, and its stock is still falling.

George Papandreou made a brilliant move at the G20, threatening to hold a referendum on the Greek bail-out, which would undoubtedly scuttle the proposal (Mish and I actually agree on this, so take special note.). Papandreou is already back-stroking on this, but the opposition parties may hold him to it.

In spite of 30-year mortgages falling to 4.1%, housing prices continue to sag because no one is buying because no one can. How can you buy if your job prospects consist of being a part-time greeter at Walmart? Yet Bloomberg has the temerity to blame the malaise on new regulations.

But then what do you expect from Hizzoner Michael? He just blamed the mortgage mess entirely on Congress. Have to protect Wall Street at all costs, eh Mike? Even Forbes called BS on this.

So what do people consider to be the big answer to this mess? Gold. Yes you read that right. The big, yellow clunker. I love Paul La Monica's comment about gold having "tangible value". Really, Paul? How many fillings and ear studs do you need? Trust me, children, as I've commented before, if you wake up one day wondering where you're going and what you're doing in that handbasket, you won't need gold, you'll need dirt and lead, i.e. a place to grow your spuds and a loaded weapon to defend them. Smokes and booze are far more useful for barter than gold can hope to be.

And on top of that, a growing bloc of idiots thinks returning to the gold standard is the way to go. Yeah, that makes sense. Everybody is in hock to his highest hair follicles, and the threat of severe deflation grows daily, and we're going to fix it all by hardening the currency. Reality to geniuses: We tried exactly that in the 1870s and got a quarter-century of rolling recessions. For most people it was a depression. Except for the top 1%, who made out like bandits (Ever hear of The Gilded Age?). Now stop and think about who is really pushing for a gold standard now. Sheesh, I knew you people were born at night, but I didn't know it was last night.

Ye Olde Spelinge Bea

I'm a good speller (You wouldn't know it from some of my entries, but that's because I'm not a good typist.). It runs in the family. My dad is a good speller. My son is a good speller. Dad and I both rocked in spelling bees when we were in school. Today was the boy's first spelling bee, and I was reminded why, even though I'm good at them, I loathe spelling bees.

When I was in seventh grade, I won the school contest and went on to the county. Then things got serious, and we received a little blue book of words to study. I remember looking through the lists and thinking, "Who last used these words, Chaucer?" I think I've actually found some of them in my Anglo-Saxon copy of Beowulf. Seriously, though, I think spelling bee organizers pull a solid 25% of their words from diaries of their great-great-great grandmothers who spent their lives in rural, isolated places. Well, I got tripped up by one of those "words that are no longer with us" (and that wasn't in the blue book either, hah!). Now, I have always loved reading Shakespeare and such and learning the words in the old literature, but you have to draw a line. Dad and I actually got into an argument about that line in the parking lot after the spelling bee. He threw an "if you'd just study more" routine at me, and I responded, "Who gives a damn about memorizing words that haven't been used since before Noah Webster was born?" He didn't appreciate that.

The rock the boy wrecked on was that commonly used word "chickabiddy". Look it up (I sure had to.) and ask yourself what dismal corner of 19th Century Mississippi they dragged it from. There isn't enough time to learn everything there is to learn in school, and that problem gets worse every year. Learning to spell words that fell into disuse so long ago they probably never had a standard spelling isn't learning, it's busy work.

The State of Chapter 13

Earlier this week I posted an update over at my LinkedIn page about managing to shove two Chapter 13 plans through confirmation over the trustee's objections and without breaking the clients' nonexistent bank accounts. That page is for business PR, so I keep it civil. Not so much here.

First, you have to understand what bankruptcy "reform" in 2005 did (Look here for my unvarnished opinion on what BAPCPA was really about.). BAPCPA shifted the presumptive chapter for consumers from 7 to 13, from liquidation to a 3-5-year repayment plan (bka release-time debtors' prison). That means that, if you are an ordinary schmoo, and you can't jump through a bunch of special and frequently shifting hoops, you have to go for Chapter 13. Which means the Chapter 13 trustee effectively dictates who gets bankruptcy protection and who doesn't.

Second, understand that, according to my sources, Chapter 13 problems are not limited to Utah. Chapter 13 trustees all over the country are slamming the door in people's faces for no good reason other than they can (Example: Why do the trustees push, and why do the courts order, the inclusion of Social Security in projected income? Just because there's a line for it on Schedule I, in spite of the express definition of "disposable income" in 1325(b)(2)? And in spite of creditors not being able to reach Social Security if the debtor were liquidated? You decide to make it unfeasible for a substantial population of elderly and disabled citizens to obtain bankruptcy protection? Aside from being, IMNSHO, an error of law, there is a term for this: jerkitude.). Why on Earth are Chapter 13 trustees more intent on wrecking debtors than Chapter 7 trustees are?

But there are peculiarities to Utah. First, the trustee routinely throws three sets of objections at a debtor: one for the 341 meeting, one after that, and another just before the confirmation hearing. How many bites at the apple does it take? Second, has anyone in that office run a business? A frightening percentage of the "objections" to business financials are just tragic. Third, why is everything a last-minute sandbagging? I know you're busy, but so am I, and I don't like wasting my time at a hearing where you're raising new issues or resurrecting issues I thought we had resolved. Or raising things that aren't before the court, just to stir the pot (Example: In a recent confirmation hearing that ended up being continued, the trustee noted to the court that I had objected to several claims. True, I had, because those creditors had not bothered to document their claims, and I was entitled to object [The rules say so.], but the trustee insinuated I was being sneaky and obstructionist. The court then proceeded to unload on me and accuse me of a bad faith filing. Well, the creditors amended their claims, and I filed a withdrawal of my objection, but to cover myself, I laid out the legal basis for the objection. I wanted to make it clear to the court that there has been a change of law and to the trustee that I was not amused, but mostly (no, really) I wanted to fire a warning shot over the bows of any creditors who were thinking of taking me to task. But in the end, not one step of that trip was necessary.).

Finally (No, not really. See below.), why does the Chapter 13 trustee mess with exemptions? Utah is an opt-out state, so we use only the state exemptions, not the federal. Some of those exemptions are based on the item, not the value. For example, your refrigerator is exempt, regardless of how much it's worth. Nevertheless, the Chapter 13 trustee insists that each exemption have a specific value. Have you ever tried to value used carpet? On top of that, if the trustee doesn't fancy your value, you're facing an objection that will have to be resolved at the confirmation hearing. Why does this matter? Because the US Supreme Court recently ruled that a debtor can lose part of an exemption by claiming less than the full value of the exempt item. I'm not interested in setting a $10,000 value on the household appliances only to have their value ultimately pegged at $15,000 and having the trustee demand an additional $5,000 be paid into the plan. I have a work-around I've devised, but I'm waiting for the trustee to object to it. Because then the fight will start.

But the thing that really bugs me is something that has bugged me about the bankruptcy court since I first walked through its doors over a quarter-century ago: It's a sealed society. We have an extensive code and extensive general and local rules. We have standardized forms, best-practices manuals, and regular training sessions. But it's all for show. In reality the bankruptcy court is a Star Chamber that functions via secret handshakes and Captain Midnight decoder rings. Case in point: I've been trying to figure out a number of the requirements the Chapter 13 trustee imposes on plans. Not in the code, not in the rules, not in the handouts. Finally stumbled across a blog the trustee established over three years ago (and hasn't updated in over three years) laying out the office's interpretation of the new model plan. Not the authorities, just the conclusions. But there it was, all laid out (No, I'm not going to give you the URL. A guy has to have some trade secrets.), everything they've decided to require in a Chapter 13 plan. All I can say is "Wow, just wow." A model of transparency.

Which is a long-winded rant of a way of saying, forget what you read on the self-help sites on the Internet. If you're planning on filing bankruptcy, especially Chapter 13, seek help from somebody who does it for a living. Because what it says in black and white isn't the way things work in the real world.

About Me

I am an attorney licensed in Washington and Utah, and I keep track of real estate and business law in the Rockies and on the West Coast in general. Real estate law these days goes far beyond owning dirt and building things on it, and business is about more than hanging out an "OPEN" sign. They're about management, employment law, insurance, and lots and lots of regulatory compliance. Stop at my Spots, and we'll see if we can sort things out.

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DISCLAIMER

Knute Rife has made this blog and the materials on it available to the general public for informational purposes only. The information provided is not legal opinion or legal advice. This information is not intended to create, and the receipt or viewing of it does not create or constitute, an attorney-client relationship. No one should act upon this information without seeking professional counsel.